Employment Lie Detector Tests

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 May an Employer Use a Lie Detector to Determine the Honesty of a Job Applicant?

Generally, the Employee Polygraph Protection Act (EPPA) prohibits most private employers from using lie detectors during the hiring process or during an employee’s tenure. This means that in many cases, employers cannot use polygraph tests to determine the honesty of a job applicant or to investigate allegations related to theft or controlled substances.

What Is a Polygraph Test?

A polygraph test, commonly referred to as a lie detector test, is a device designed to measure and record physiological responses to a series of questions. When a person is subjected to a polygraph, several sensors are attached to their body.

These sensors typically monitor the person’s heart rate, blood pressure, respiratory rate, and galvanic skin response (which measures the electrical conductance of the skin, often influenced by sweating). The idea behind the polygraph is that deceptive answers will produce physiological responses that can be differentiated from those associated with non-deceptive answers.

The process involves a trained polygraph examiner asking a series of questions while the individual’s physiological responses are recorded. Before the actual test, the examiner often conducts a pre-test interview, establishing a baseline and making the person familiar with the process. The questions during the test may be a mix of relevant and control questions, aiming to differentiate between truthful and deceptive responses.

When Is a Polygraph Test Used?

Historically, polygraph tests have been used in various contexts:

  • Criminal Investigations: Law enforcement agencies sometimes use polygraph tests during criminal investigations. While the results are not admissible as evidence in many court jurisdictions due to concerns about their reliability, they can still serve as a tool for investigators.
  • Employment Screenings: Before the introduction of the EPPA, it was more common for employers, especially those in sensitive sectors, to use polygraph tests during the hiring process to vet potential employees.
  • Internal Investigations: A company may suspect theft, espionage, or other internal wrongdoings. If so, they might have previously considered using a polygraph as part of their investigative toolkit.
  • Personal Reasons: Individuals sometimes voluntarily undergo polygraph tests to prove their honesty in personal disputes or controversies.

However, with the enactment of the EPPA, the use of polygraphs by private employers in the U.S. became heavily restricted, recognizing the concerns about the test’s reliability and the potential for misuse in employment contexts.

What Are the Key Provisions of the Employee Polygraph Protection Act (EPPA)?

The EPPA was established to safeguard the rights of employees and job applicants from being subjected to lie detector tests against their will. Some key provisions include:

Prohibition Against Requiring or Suggesting Polygraph Tests

EPPA establishes a clear boundary for most private employers when it comes to polygraph or lie detector tests. Under this provision, these employers cannot mandate, demand, or even subtly imply that an employee or a potential job applicant should undergo a polygraph examination.

This provision is critical because it ensures that employees or job applicants aren’t subjected to undue pressure or coercion. The underlying principle is the protection of personal rights and the prevention of potential misuse of polygraph results by employers.

Restrictions on Using Test Results for Employment Decisions

While there are specific, limited circumstances under which a polygraph test might be administered (given the exceptions to the EPPA), the results of such a test cannot be used wantonly. Employers are prohibited from using the outcomes of a polygraph test to make unfavorable employment decisions. These include firing, demoting, or refusing to hire someone based on the results.

This provision is paramount in ensuring that potential inaccuracies in polygraph results don’t lead to unjust employment practices. It recognizes the inherent imperfections in lie detector tests and their potential for error.

Mandatory Display of EPPA Rights in the Workplace

Transparency and awareness are key tenets of the EPPA. As such, the Act mandates employers to visibly display and inform employees about their rights under the EPPA. This ensures that every employee is aware of their protections concerning lie detector tests.

By requiring such a prominent display, the EPPA aims to foster an environment where employees are informed and empowered, and any potential missteps by employers can be promptly identified and addressed.

How Does the EPPA Affect Businesses?

The EPPA sets strict standards for businesses and limits the conditions under which a polygraph test can be administered. It also mandates that businesses inform employees of their rights under the EPPA. Violating the EPPA can lead to legal consequences, including fines. As such, businesses need to be cautious and informed about when and how they might be able to use a lie detector.

The Department of Labor (DOL) can impose a civil penalty of up to $24,017 per violation for any employer who violates any provision of the EPPA.

An employee or job applicant who suffers any loss of wages or benefits, or any other damages, as a result of an employer’s violation of the EPPA can file a lawsuit in federal or state court to recover such damages, as well as legal costs and fees.

An employee or job applicant can also file a complaint with the DOL within three years of the alleged violation. The DOL may investigate and take appropriate action on behalf of the complainant.

Are There Exceptions to the EPPA?

Yes, the EPPA does provide exceptions.

Security Services and Controlled Substances

EPPA does make allowances for certain sectors where the nature of the job might necessitate more strict measures to ensure safety and compliance. Companies in the security services sector, for instance, often handle highly sensitive information or are tasked with protecting vital assets. An example here might be a private security firm responsible for guarding a classified research facility or a secure data center.

Due to the critical nature of their duties, it’s understandable that these firms might require added layers of vetting. Similarly, companies involved in the manufacture and distribution of controlled substances also fall under this exception. Imagine a pharmaceutical company producing powerful painkillers; ensuring that their employees are beyond reproach is crucial, given the potential for illegal diversion or misuse of these substances.

However, even within these sectors, the use of polygraphs comes with restrictions. Employers cannot administer these tests indiscriminately and must ensure they are done fairly and ethically.

Polygraphs for Investigating Theft or Embezzlement

In situations where an employer has valid reasons to suspect theft or embezzlement within the company, the EPPA does permit the use of polygraph tests. However, this is not a carte blanche permission.

For instance, a substantial sum of money might go missing from the company’s account, and evidence points towards a specific employee having both the means and opportunity to commit the theft. If that is the case, the employer might consider a polygraph test as part of their investigation.

The key word here is “reasonable suspicion.” Employers can’t just administer polygraph tests to random employees without cause. They need to have substantial grounds for suspecting a particular individual or group of individuals. The EPPA ensures that employees are protected from arbitrary and potentially malicious use of lie detector tests by setting these conditions.

Do I Need an Experienced Employment Law Attorney?

If you believe your rights under the EPPA have been violated or if you have questions about the Act’s application, consult with an attorney. Seek out a knowledgeable discrimination lawyer through LegalMatch who can provide guidance, represent your interests, and ensure you’re informed about your rights and protections under the law.

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